concurring.
Although I am in accord with the conclusion reached by the majority .that the judgment should be reversed and the cause remanded, I am not in accord with the basis adopted by the majority for arriving at that conclusion.
Under a factual situation as set forth in the majority opinion I do not believe the instruction given by the trial court was prejudicially erroneous. My reasons for disagreeing are sufficiently set out in my dissent in Schluter v. State, ante p. 284, 37 N. W. 2d 396.
However, for the reasons stated in the concurring opinion of Judge Chappell, with which I am in full accord, the conclusion arrived at by the majority is, in my opinion, the proper one.
Carter, J., joins herein.